Failing, Ever Failing

Erick Erickson is eager for more primary challenges against Senate Republicans:

Two Republicans in the Senate caused this fight that their colleagues would have surrendered on more quickly but for them. Imagine a Senate filled with more.

The fixation on punishing the Senate Republicans that “surrendered” is revealing. It shows that Erickson still doesn’t grasp that lack of control of the Senate doomed any effort to force significant concessions from the administration, and it shows how oblivious he remains to the greater political dangers that the GOP just escaped. Having a larger number of uncompromising Republicans in the Senate probably wouldn’t have prevented yesterday’s deal, since nearly two-thirds of the Senate GOP voted for it anyway. That’s a lot of “charlatans” to defeat. Nonetheless, if a deal had been prevented thanks to Senate Republican opposition, Republicans would just as surely have “owned” the consequences of breaching the debt ceiling as they “owned” the shutdown. Those consequences would have been significantly worse for the country, and Republicans would have to start worrying about a net loss of seats in the Senate and the House. In case Erickson missed it, this would be the opposite of advancing. In other words, he wants to punish the Republicans that averted even greater disaster for the party than the failed strategy he urged them to follow.

As things stand now, diverting energy and resources into additional primary challenges isn’t going to make it more likely that Republicans will control the Senate in 2015 and could potentially cost the party a seat here or there it shouldn’t have lost. That all but guarantees that the party will be in the same place two years from now that it is today. Once again, Erickson is urging conservatives to do things that won’t actually advance their cause, and might end up hurting it. Perhaps conservatives should reassess who it is that has been conning and fleecing them.

“Just because some of us don’t buy the notion of a clear and discernible “original intent””

Aegis, it’s not credible that we can never know the original intent at all on any issue. You can argue that the original intent on certain issues is not crystal clear. So are you saying that the intent regarding enumerated powers is not clear? I have already said that both the Federalists and the anti-Federalists explicitly endorsed enumerated powers. Do you disagree with this? On what grounds? What is your counter history to back up your position? And just in case it wasn’t clear, they ratified the 10th Amendment to make it so. Is that not what the 10th Amendment was intended to do? And I don’t want court cases years after the fact. I want historical references from the time. This is what we do when we make statements. We back them up with facts. So have at it.

“I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.” ~ James Madison on the 10th Amendment

This is the only “conservative” media I consume, because it seems to be one of those rare ones that’s neither offensive nor stupid.

Great ruckus here about language and meaning. If conservatives can’t agree among themselves on what the word means and what actions best exemplify it, and if liberals can’t agree on the same thing about what it means to be liberal, and if no one can agree on hardly anything because the world is Babel from top to bottom, well, (… trails off

Do you honestly think that the person who said that growing wheat for one’s own use was an act of interstate commerce really believed this and wasn’t simply adjusting the law to get the result he desired?

Just because some of us don’t buy the notion of a clear and discernible “original intent” does not mean that we do not try to conform our policy preferences to what we think the Constitution permits.

I would argue that it does. Most of you are trying to conform the Constitution to what your policy preferences are.

I think that there are Senators who should be primaried. Lindsey Graham and Lamar Alexander really need to be, because they are tools of the big-business lobby that wants to destroy the U.S. through mass immigration.

A loss by Graham and/or Alexander might put a stop to the huge desire of some Republicans to sell out their base for a few bucks of donations.

I think that trying to primary on the basis of the ACA fight, however, would be counterproductive, and agree with Ann Coulter that we need to pick our battles. I see no reason to replace Enzi, who voted correctly on amnesty and gun control from the very start, with Cheney (shudder).

I think that Collins of Maine, another amnesty voter, also ought to be challenged, although I’m not certain that a challenger would win the general election. That’s okay, though, because the challenger probably would not beat her in the primary, and the goal is less to replace her than to scare her and bring her back on the reservation.

In other words, she needs a challenger just as a shock collar to keep her in line. (Also, the challenger does not have to be particularly conservative, just very conservative on guns and immigration, two issues where I don’t think conservatism would be out-of-line with Maine’s politics).

“What would Boehner’s stake be in holding up a compromise? The Poor Dear seemed to be practically begging for a compromise. I admit I assumed he didn’t have the votes. I’ll look into it.”

It depends on what you mean by “not have the votes.” There were always enough votes in the entire House (Democrat and Republican) for a clean CR. But there were not, apparently, enough votes in the House GOP caucus to bring that CR to the floor without violating the Hastert Rule.

That “Rule” (it is really just GOP policy, not a “rule,” technically, of the House) says that nothing goes to the floor unless a majority of House Republicans want it to. And, from the final vote tally yesterday, it seems likely that there was NEVER a majority of House Republicans to send the clean CR to the floor for a vote.

Rather, at the eleventh hour (in terms of the default), Boehner broke the Hastert Rule, and put the CR up for a vote by the full House even though most House Republicans did not want that vote (or the CR itself). Of course, Boehner could have done something like that at any time, so I don’t think it is accurate to say that “the poor dear” wanted a “compromise” at any cost all along.

What is fair to say, I think, is that this entire affair was not his idea. he went along with it because he would have to break the Hastert Rule to stop it. And while Boehner did probably want some kind of face saving compromise once the ball got rolling, again, he did not want to break the Hastert Rule to get it.

In the end, he got no real compromise, but capitulated pretty much completely. AND, to boot, had to break the Hastert Rule to do it. For Boehner, I guess, the default, unlike shutting down the government, was a bridge too far. And Hastert Rule be damned, he was not going to let that happen. Much as I don’t like him and it pains me to say it, that is actually a mark in his favor, if only a small one.

See, I think Cruz and the radicals wanted to get sold out by Boehner, so they can be, and fundraise as, the guardians of revolutionary purity. He didn’t want to oblige them until the last minute, both because he didn’t want to spend the next 3 months hearing that if he’d held on a little longer, the President would have caved and because, well maybe lightning would strike, and the facts on the ground would change enough that he could skate.

I didn’t see him as begging for compromise, but he’s smart enough to know that unless there was some sort of deux ex machina, he was going to have to cave at the last minute, and take what little he could get. And pretty much everyone knew it was going to end as it did — plus or minus two or three days — except those who have a financial/political interest in pretending it might have ended with some sort of policy victory.

You really do not understand Mainers; Mainers are to the Deep North what Louisianans are to the Deep South – different, but in ways that can fool you. They are not like a Yankee version of Dixiecrats. Imagining they are has caused grief to the GOP’s long term fortunes in Maine. Mainers don’t hate the government so much as outsiders trying to manipulate them for ulterior ends that are not necessary to Mainers’ own benefit. The national GOP is more likely to be in their cross-hairs than the Dems if the GOP decides to scare Collins.

“And I don’t want court cases years after the fact. I want historical references from the time. This is what we do when we make statements. We back them up with facts.”

My suspicion is that you are an engineer, because this is exactly how all engineers talk when they talk about legal matters. And they get basic things wrong.

For one thing, the very notion of judicial review was not set out in the “Constitution”, and yet, John Marshall made it happen within twenty years of its ratification and under the nose of Jefferson, and so a principle that is not in the Constitution is a sacrosanct principle of constitutional government, followed not only in the US but in most countries with written constitutions.

For another, you can quote Madison till the cows come home – but he was only one of the “original” drafters, and within his own time, his vision was hotly contested. People forget that Madison’s co-writer of the Federalist Papers was Alexander Hamilton, who is the 18th century version of Obama in economic terms.

There are 330 million people in the United States, and some 220 million of voting age. Each of them can take up a copy of the Constitution and read it, and read the history of it, and then make up his or her own mind as to what it all means. But in a state governed by the rule of law, there is a final arbiter of what the Constitution and what the law means, and it is the Supreme Court of the United States. And there are processes for challenging policies that one thinks are unconstitutional. The Constitution is not the Bible, and the State is not a Lutheran church, where you can read something and come up with a personal interpretation and a personal relationship with God. This is why talk of “pre-1937 Constitution” is simply idiotic.

In any event, I am certain that not a single self-declared “originalist” would actually want the original intent of the Second and Fourth Amendments to be implemented. So the please can the “policy preference” canard.

John Marshall was the floor leader in the Virginia ratification effort, and so surely his writings on the Constitution have some authority (beyond having led the branch whose province and duty is to say what the law is). Luther Martin, who’d been part of the opposition to ratification in Maryland, argued to Marshall in M’Culloch v. Maryland that if the Supreme Court rejected the state’s position, it would prove that all the assurances from federalists about limited government had been a bait and switch.

The Court did rule against Maryland and pretty much conclusively rejected the kind of constitutionalism Red is advancing here. In 1819.

By the way, Red, do you think any provision of the Constitution prevents Chicago from banning the ownership of handguns? Or prevents Montana from banning corporate campaign contributions? Or prevents Oregon from banning parochial schools?

In order to understand the depth of delusion under which Erick’s RedStaters labor, one need only consult Erickson’s posting rules. My personal favorites:

6. It is forbidden to promote or give any kind of support for parties other than the Republican Party, or candidates running against Republican primary, caucus, and/or convention nominees. Exceptions to this rule are granted when announced prominently on the front page of the site.

14. It is forbidden to attempt to discredit or bring disharmony to the site, the Republican Party, any of its candidates, or the conservative movement by pretending to be something one is not and posting maliciously. The practices known as “concern trolling” or “mobying” are included in this ban.

lack of control of the Senate doomed any effort to force significant concessions from the administration

If the GOP is unable to elect a majority of Senators who oppose the ACA … how will it be able to elect a majority of Senators who are willing to take the country to the brink of financial disaster in order to repeal the ACA?

I do find it interesting how those with zero legal training seem to have such confidence on what the Constitution says. In my view, such commenting comes awfully close to practicing law without a license, and should be punishable as a felony and a prison term of 5 years or so. The interpretation has been entrusted to the officers of the Courts of this land. All others should either seek to become such an officer, or pipe down. After all, I don’t go around telling endocrinologists how to treat diabetes.

Besides, the Constitution articulates a number of broad prescriptions, almost all of which are in tension with other broad prescriptions of the same document. No portion of it can be interpreted in isolation of the whole, and it is entrusted to the sound judgment of the Courts to conduct this careful balancing. And, in my opinion, our judiciary is far and away the best of any country in the world. You can’t exactly say the same for our engineers, who get schooled by Japanese and German engineers on a regular basis.

Okay, I looked. Didn’t find any ideas. Saw allot of argueing about who lost what battle. Hey, denying health care coverage to people was the good fight? Good luck with that one guys! Meanwhile those commy pinko liberal socialists with all their undeserving minions keep marching on. To ell I guess. Luckily we have discussions at TAC over future ideas and strategy instead of pointless finger pointing. You are but what am I? Grow the f up. Who is going to win the next election? How about what policy will win the next election. Well the constitution says…Nope, doesn’t say anywhere who will win the next election. Well I stand for small government not big government. That horse is still alive? Dmn, beat it some more! The constitution doesn’t say the law of the land can be the law of the land because it shouldn’t be the law of the land because it doesn’t say it could be the law of the land in the constitution. At least start chasin your tail the other way around. Some are bound to eventually find out that they’ve been fleecing themselves while chasin their own arse.

The sane approach, I assert, is (something like) a constitutional convention that brings all the big items together and reconciles them under common sense prudence.

1) Establish critical federal functions and the structures by which they are implemented. Nationl defense, foreign relations, arbitration of disputes between states, etc.

2) Establish what they cost.

3) Establish a budget that funds them.

4) Establish a means for collecting revenue.

I would require that the budget have an irrevocable line item for paying down the national debt over a finite period of time.

Making a balanced budget a mandate ties the hands of special interests and political ploys to support the re-election efforts of incumbents (de facto prohibition of all pork-barrel legislation). Require that all future borrowing be for specific expenditures with finite-period payoff.

“Everyone” seems to want a simplified tax code, but calls to create one (some of them with very reasonable suggestions) are ignored or shouted down.

“For one thing, the very notion of judicial review was not set out in the “Constitution”,”

I KNOW! Us originalist make that point all the time. What boggles my mind is that so many people just casually accept this sort of lawlessness. You’re making my case for me. If the refs changed the rules in the middle of a football game causing your team to lose, would you be peachy with that? How ’bout we play a game of poker but with my refs and they get to change the rules whenever they want. You game? BTW, I don’t reject judical review per se. Nothing in the Constitution forbids the SCOTUS from ruling on the constitutionality of laws before it. I just reject the idea that the Supreme Court has the final say on constitutionality. NOTHING in the Constitution says that.

“Each of them can take up a copy of the Constitution and read it, and read the history of it, and then make up his or her own mind as to what it all means.”

But if one said this means we are all to be ruled by Reptilian Aliens that reside inside the Spaceship Moon, he would be WRONG. There are some grey areas. There is a lot that is pretty darn clear. Don’t pretend otherwise. What? Are we all deconstructionist now?

“But in a state governed by the rule of law”

But we are not governed by the rule of law. That’s the problem. And you are explicitedly making the case that we shouldn’t be.

“there is a final arbiter of what the Constitution and what the law means, and it is the Supreme Court of the United States.”

You just admitted yourself above that that is not in the Constitution.

And I admit that Madison could sometimes be all over the place, but he said the 10th Amendment was “superfluous,” meaning the principle of enumerated powers was already understood and taken for granted. You really can’t get any more clear than that.

“I do find it interesting how those with zero legal training seem to have such confidence on what the Constitution says. In my view, such commenting comes awfully close to practicing law without a license, and should be punishable as a felony and a prison term of 5 years or so. The interpretation has been entrusted to the officers of the Courts of this land. All others should either seek to become such an officer, or pipe down. After all,”

Thanks for putting that in print for all the world to see. Now if I ever need to discredit you, I can just refer back to it. “Bobby wants to throw you in jail for opinining about the Constitution.”

Matters of technical law are one thing. Matters of constitutional meaning and intent are another. Determining the meaning of the Constitution would be better left to honest and sincere historians, rather tha lawyers. If a historian wants to know something about a particular place, time and circumstance, he goes to source documents and evidence from the time period first and what others said about it years afterwards later. Lawyers go to the most recent court case first to determine what the Constitution means. This is absurd on its face. That’s like a historian who wants to learn about the Roman Empire going to a grade school history textbook rather than reading Livy.

Red, I want to express my respect for your erudition and consistency. The ambiguity surrounding the SCOTUS being authorized to conduct judicial review is a flaw, I agree, but one can logically support it via the establishment of the judicial branch in Article 3, Section 2 text [emphasis by FE]:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

I agree that we too easily get bogged down in semantic duels, but I offer this at face value: “unconstitutional” works as the logical equivalent of “violates one or more provisions of the Constitution”. As such — and I defer to lawyers on the accuracy of my wording — for a Supreme Court to rule in favor of such a claim has the effect of the argued judicial review while fulfilling (at least) the letter of that Section.

No one should have any doubt that our legislative environment is complicated beyond all sanity. I have professional experience with the concept of federal pre-emption of state laws (ERISA, employee benefits). It should be of no surprise that I’ve long since pursued a different career. Regulatory compliance is a boiling fen in the middle of a fetid swamp surrounded by… well, you get my drift. 😀

“it would prove that all the assurances from federalists about limited government had been a bait and switch.”

So are you defending that it was a bait and switch? That’s fine with me. I’ll let my opponent make the argument that his case is based on deceit any day of the week.

“The Court did rule against Maryland and pretty much conclusively rejected the kind of constitutionalism Red is advancing here. In 1819.”

You’re making my case for me. Thanks. You’re admitting that you’re hanging your hat on a court case in 1819 rather than the document and the supporting evidence itself.

“By the way, Red, do you think any provision of the Constitution prevents Chicago from banning the ownership of handguns? Or prevents Montana from banning corporate campaign contributions? Or prevents Oregon from banning parochial schools?”

I don’t have time for each question, but in general, since I know what you’re getting at, the Bill of Rights did not originally apply to the states. That is why many states continued to have established churches and religious tests until well after the Constitution was ratified, for example. We didn’t get the “incorporation doctrine” until the 14th Amendment, and not even then in actuallity. First, the 14th Amendment was illegally ratified (Let’s not get into that please. I only have so much time.), and second, “incorporation” wasn’t the original intent (there’s that concept again) of the 14th Amendment anyway if it had been legally ratified. We didn’t get incorporation until court cases (see a pattern here?) decades later.

There are some bodies lying around, being stepped over here by the thoughtful comment makers. Here’s one. In a negotiation, each side exchanges something they would rather keep, in exchange for something the other side would rather not give up. In this case the Republicans “negotiated” for a long list of things that Democrats don’t want to allow. In exchange they only offered two things, and each was something both sides wanted (or at least were sent there to want). That won’t work when the side with the demands holds power. When it comes from the side out of power, its ridiculous, pathetic really. Reacting by saying that it could work if only some more players in the out party would toe the line, is foolish. The only ones we see today admitting the error are probably the ones who would not have made it in the first place.

I’m saying that a better advocate than you — a man who walked out of the constitutional convention because he didn’t like the federal superstate that was being created, and who opposed ratification — made the argument better than you are, and a way better constitutional lawyer than me — really the best ever, I think pretty much everyone but the fringiest agrees — ruled the argument didn’t hold up. In an extraordinarily articulate opinion. And this was 200 years ago, between people who had been directly involved. And we’ve been living with that interpretation for two centuries.

Of course you’re free to believe and argue that we’ve all been living an illusion these last two centuries. Unless, of course, it’s you who is wrong about what the Constitution means.

In the United States, divided government describes a situation in which one party controls the White House and another party controls one or both houses of the United States Congress.
In the United States, the constitution is designed to create conflict between the executive and legislative branches of government.

Here is the ultimate question: Why should anyone in the 21st century want to be governed by the cold, dead hands of the 18th century? The answer is rather clear from experience: no one does. Each wants his own interpretation. Everyone wants to be a Baptist – or a Catholic if only he can be the Pope.

“You keep using that word. I don’t think it means what you think it means.”
The word is “Conservative”.
As I understand it, it does not refer to an ideology (see John Adams on this one), but to an Attitude. The Attitude involves prudence, restraint, civility, and respect for tradition and for society (see Burke on this one).
It does not, most emphatically, encompass a nostalgia for The Lost Cause (there’s a reason why it was Lost), nor any of the bomb-throwing antics of nihilists who (mistakenly) seem to believe that in a dog-eat-dog world, they would be on top.
I am not a Constitutional lawyer, but I have read some of the Federalists, and the Anti-federalists, and Hamilton, Adams, Jefferson (open disclosure here, my hero), and Madison.
It is perhaps sad to realize that organization will always win over enthusiasm, but that is the way things work. We no longer live in Jefferson’s agrarian republic, nor in a Puritan (or Amish) theocracy, but in a post-industrial urbanized polyglot nation. Rather than bemoaning how we can’t have our cake and eat it too, why don’t all you sharp minds figure out how to promote conservatism in such an environment (not the one you would rather have).
Short of an epidemic that wipes out 80% of the population, there is no way you will ever get the ideal conditions for an ideal state founded on (shudder) ideology.

Charley, I notice that you yourself are not presenting evidence for the time of the Convention and ratification debate, just deferring to Marshall. Might there be a reason for that? Present your evidence that enumerated powers was not the intent, or walk away.

The Feds obviously don’t have the power to establish a national bank. They have the power to coin money and establish the value thereof. Marshall concedes enumerated powers but then says “yes but.” Marshall was either just wrong or disingenuous. So was Martin right that it was a “bait and switch?” Are you defending a “bait and switch?”

“This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it.”

If the “existing government” has lost the support of most Americans, they can indeed seek to amend it constitutionally or through revolution.

Tea Party types and their erstwhile supporters/enablers should bear in mind that they are in a distinct minority in vocalizing their disgust with the current US government, before they start throwing their rhetoric around. Or they will go the way of the Confederacy, and deservedly so.

Maybe John Marshall was wrong or disingenuous, or maybe since he personally knew many of the people involved in writing the thing, and especially in the ratification fight, he had a pretty good understanding what it was they were trying to accomplish with the language they wrote. (As did Martin, which is why he refused to sign the constitution.)

You can either believe in two centuries of pervasive bad faith — shared at present by the vast majority of your fellow citizens — or you can entertain the possibility that different people can look at the text and come to different interpretations about what it actually means.

Of course the federal government is limited, but we disagree on where those limits are. I don’t agree with the literalist view you present, nor do I agree that subjective intent of the author necessarily controls the meaning of the language. Take Loving v. Virginia, for example. I’ve no doubt that one could fill a library with quotations from the drafters and ratifiers of the 14th Amendment, and from their successors for a century after ratification, to the effect that they did not expect it to affect state statutes on interracial marriage. Thing is, the Equal Protection clause, as written and ratified, plainly precludes state laws that ban interracial marriage. The constitution didn’t change in those 100 years. We did. Our society matured, and grew up enough to appreciate the extent of the promises made to protect individual citizens from over-intrusive states.

You might have missed this, but the poll you cite says that 82% of those polled disapprove of how Congress is doing its job. The problem is less the Federal government than Congress, in which the Tea Party has influence well beyond its numbers (both to change–hopefully–in a downward direction).

Since you will undoubtedly come back with this, bear in mind that a great deal of the distrust toward the power of the Federal Government and its intrusiveness comes from those who are upset with the apparent reach of the NSA surveillance program, which is an area where those who now make up the Tea Party were notably silent when the Bush administration attempted to put such a program in place (without legislating it). It most likely has little if anything to do with the “creeping totalitarianism” of the ACA that the Tea Party is so hyped up about.